How not to gripe about the boss

25 April 2018

Former FBI Director James Comey has published a book titled A Higher Loyalty: Truth, Lies and Leadership, in which he takes several swings at his former boss, President Trump.

During national interviews, Comey has said Russia may have compromising information on President Trump and there is "some evidence of obstruction of justice" in the president's actions.

James Comey was fired by Trump as FBI Director and the book gives his version of events around his firing. It also covers the investigation into Russian election-meddling, Hillary Clinton's email practices, and Trump instructing him to end an FBI investigation into Michael Flynn. For good measure, Comey has also said that Trump is morally unfit to be president. He treats women like pieces of meat and lies constantly about matters big and small, and insists the American people believe it.

As you would expect, Trump came out swinging and wrote a tweet calling James Comey slippery, a man who always ends up badly and out of whack. He said Comey was not smart and would go down as the worst FBI Director in history, by far. He has also said that Comey should be put in jail.

These events raise questions about employment law and whether there are obligations on workers and employers after the employment relationship ends. Once employment ends, the normal obligations of fidelity and behaving in a way that promotes trust and confidence no longer apply. So it would seem that then employers and workers can say what they like about each other. But can they?

Traditionally the law imposes a duty on workers to maintain confidentially after employment ends. However, the information must be truly confidential and communicated in a way that creates an obligation on the worker to maintain confidence.

Certainly where that sort of information is used without authorisation and causes harm to the former employer, legal action can be taken. But this is clearly quite a limited safeguard.

This obligation of confidentiality can be seen in the case involving Medic Corporation and Mr Barrett. Barrett was employed by Medic Corporation but was made redundant. He and another former worker went into business in competition with Medic Corporation and sought to replace it as the New Zealand distributor for one of Medic Corporation's key suppliers. They planned to take advantage of the fragile relationship between Medic Corporation and the supplier which they became aware of whilst employed.

Knowledge of an employer's relationships with its suppliers, particularly when fragile, should not be used to the employer's detriment. The court prevented Barrett and his new business partner from entering into business with Medic Corporation's suppliers.

But what about bad-mouthing your former employer as James Comey did? Readers may believe a person should be free to express their views in such a situation and know that the Bill of Rights protects freedom of expression. The Bill of Rights only binds governmental organisations, yet it may still fortify readers to know they can freely express themselves without the government interfering.

However, the law of defamation may have a chilling effect on statements of the sort James Comey has made. Where the statement was the truth or an honest opinion there is a defence, but you are moving into an area riddled with landmines if you defame your former employer.

An employer who wants to prevent being publicly criticised by former employees should ensure their employment agreements include a confidentiality clause which remains in force after employment ends. It is worth looking at confidentiality clauses for high-ranking executives.

President Trump seems to fire more vitriol than all of the dismissed officials combined.

Does the law say anything about subduing a former employer's tongue?

The leading case for our purposes is the English case involving Graham Spring. Spring was employed in 1989 by Guardian Assurance as sales manager in the small English town of Cirencester. He was dismissed without explanation that same year by a newly appointed chief executive.

He applied for a job with a competitor, Scottish Amicable Life Assurance Society. Unfortunately, when a reference was sought, Guardian gave an attacking reference describing Mr Spring as "a man of little or no integrity [who] could not be regarded as honest" and that he "consistently kept the best leads to himself with little regard for the sales team that he was supposedly to manage". They added a sting by saying that Spring left the company "owing some £12,000 which to date has not been repaid".

How do readers think Graham Spring fared in his job application? Unsurprisingly, Spring was not offered employment with Scottish Amicable Life Assurance. Indeed, he had no luck finding alternative work. Of course Spring was unhappy with Guardian's role in the destruction of his career. He took a case that was eventually heard by the House of Lords.

The House of Lords found in Spring's favour. They stated employers have a duty toward former workers to give an honest reference where one is sought. Spring's case highlights that anyone who provides a reference must do so honestly, or not give a reference at all. For the most part, we seem to live in a country where people give respectful and truthful references. At the very least we should all be glad that in New Zealand scathing tweets from our nation's leaders have not become the norm.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.